Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

The Laird of Wedderburn
v.
John Stuart and Robert Douglas

Date: 4 February 1634

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There was a decreet obtained against the Laird of Wedderburn, by John Stuart of Coldingham, his superior, for reducing Wedderburn's infeftment for not payment of the feu-duty, in which decreet Robert Douglas, donator to the said John's escheat and liferent, was a party in whose favours the decreet was given. This decreet was craved to be reduced, at Wedderburn's instance, upon the Act of Parliament 1633, whereby the superiorities of erections were annexed to the crown, and declared to have been from the date of the commission 1627; after which time the decreet had been given at John Stuart's instance, which could not have been, he being then denuded of the superiority before. This reason having been found relevant against John Stewart, it was alleged, for Robert Douglas donator, That it could not militate against him, because John's escheat was disponed to him before the date of the commission I627, whereupon he had obtained general declarator before it likewise; so that John Stuart, after that, by his surrender, could not prejudge his donator who had not submitted, and who, by virtue of his gift, stood ever in the right of the superiority before the Act of Parliament 1633. Replied, He being donator, and, by virtue of his declarator, having right to Wedderburn's liferent, (who, being rebel past year and day, his liferent fell to John Stuart, and, by consequence, to his donator, who had got it declared also,) he might and had right to intromit with the mails and duties of Wedderburn's lands, and so could never have sought his infeftment to be reduced for not payment of the feu-duty; seeing the rebel could not have been bound to pay the same, if the donator had used his right, and sought possession; which if he had neglected, sibi imputet; and it is more proper that he should yet seek it in that way, than to have the pursuer's infeftment reduced. The Lords repelled the exception, and sustained the reason of reduction against the donator.

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